We’ve blogged earlier about the administrative review case proceeding in South Africa that is addressed to the question of whether the South African Police Service (SAPS) and National Prosecution Authority (NPA) are obliged by domestic law to investigate the commission of torture in neighboring Zimbabwe by members of that countries’ security forces and their superiors (so-called “securocrats”). Last week, the Constitutional Court affirmed an earlier ruling that the SAPS and NPA had in fact failed to carry out their statutory duties and had not acted “reasonably” in declining to investigate the alleged crimes against humanity. Although much of the opinion turns on domestic legislation coupled with the constitutional imperative to interpret South African law in accordance with binding international law, there are some important strands of analysis that will resonate beyond the South African context. In particular, the Constitutional Court reasoned that the exercise of universal jurisdiction is subject to some limitations imposed by an intermixture international law and domestic law. The Court also acknowledged that the exercise of universal jurisdiction will have “political” ramifications, particularly vis-à-vis the state of nationality of the accused; that said, the Court observed that the failure to prosecute crimes within the reach of the law yields its own “political” consequences, particularly for a country founded upon a commitment to promote international law and human rights. The SAPS indicated yesterday that it would comply with the Constitutional Court’s judgment, thus paving the way for the formal investigation to commence.

By way of background, the law in question (the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002) was passed following the ratification by South Africa—a dualist state when it comes to the domestic applicability of treaties—of the Rome Statute of the International Criminal Court (background here). South Africa was the first African state to incorporate the Rome Statute into its domestic law. The lawsuit was brought by the Southern Africa Litigation Center (SALC) and the Zimbabwe Exiles’ Forum (ZEF), which together compiled an enormous dossier on the systematic commission of torture and other crimes against humanity in Zimbabwe. They brought suit after the South African authorities declined to open an investigation on the grounds that the evidence was insufficient and, in any case, that the actual presence of the suspects in South Africa was required before an investigation could be commenced. In the earlier decision (discussed at greater length here, here and here), the South African Supreme Court of Appeal had held that the NPA and SAPS were in fact obliged under the law to investigate Rome Statute crimes so long as the perpetrators might someday fall within the personal jurisdiction of the South African courts through, for example, their presence or habitual residence in the forum. The National Police Commissioner appealed, arguing among other things that the ruling invaded the SAPS’ zone of prosecutorial discretion.

Late last week, the Constitutional Court unanimously affirmed. Appropriately, the Court began its opinion with a quote from the late Nelson Mandela:

South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations, and we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations

The Court also invoked South Africa’s history as a pariah state and the importance of it carrying out its sovereign obligations toward the community of nations:

The extent of our country’s responsibilities as a member of the family of nations to investigate crimes against humanity lies at the heart of this case. [This appeal calls] upon us to establish South Africa’s domestic and international powers and obligations to prevent impunity and to ensure that perpetrators of international crimes committed by foreign nationals beyond our borders are held accountable.  We must determine what the law requires of us as South Africans and of our country as part of the community of nations in respect of these types of crimes.

The Court then rendered a number of important rulings:

First, on whether the accused must be present before the authorities can even commence an investigation, the Court ruled at para. 47:

Accordingly, the exercise of universal jurisdiction … may occur in the absence of a suspect without offending our Constitution or international law.

Second, on whether the SAPS was under a duty to investigate, it held at para. 57:

The statutory designation of international crimes under the SAPS Act domesticated into our law by the ICC Act requires the SAPS to prioritise these types of crimes and indeed imposes a duty on it to do so.

Third, on the existence of limitations on the duty to exercise universal jurisdiction, the Court determined (at paras. 61-63) that the duty to prosecute is subject to two limitations: subsidiarity (a.k.a. complementarity) and practicability. It concluded that an investigation within South Africa does not offend the principle of non-intervention and that there is a reasonable possibility that the SAPS would gather the necessary evidence to proceed given the detailed dossiers already developed, particularly in light of the fact that the possible presence of the suspects in the future “cannot be discounted” (paras. 78-79).

Fourth: on whether the SAPS had reasonably declined to investigate, the Court held (para. 78) that:

The threshold for the SAPS to decline to investigate, bearing in mind the particular facts and circumstances, has not been met in this case.

Fifth: on whether there is a sufficient nexus between South Africa and the alleged crimes in question, the Court ruled at para. 78 that:

Given the international and heinous nature of the crime, South Africa has a substantial connection to it.

Sixth: by way of remedy, and especially given the unreasonable passage of time, the Court noted at para. 82 that:

An expedited investigation is of paramount importance as the unearthing of evidence may become more difficult with time.

For our readers interested in a more granular analysis, the Court’s line of reasoning proceeded as follows:

  1. Para. 32: The need for states parties to the ICC Statute to investigate international crimes is most pressing when those crimes are committed by citizens of, and within the territory, of non-party states that are not investigating the crimes themselves, “because to do otherwise would permit impunity.”
  2. Para. 34: It is clear that “a primary purpose” of the ICC Act is to enable the prosecution in South Africa or the ICC of “persons accused of having committed atrocities, such as torture, beyond the borders of South Africa.”
  3. Para. 35: “[T]he ban on torture has the customary international law status of a peremptory norm from which no derogation is permitted” (citing Filártiga).
  4. Para. 37: International law requires states, “even in the absence of binding international treaty law, to suppress” other international crimes, including war crimes and crimes against humanity.
  5. Para. 40: Because of the international nature of the crimes in question, … South Africa is required “to exercise universal jurisdiction in relation to these crimes as they offend against the human conscience and our international and domestic law obligations.”
  6. Para. 43: “Our Constitution requires that an accused person be present during her or his trial, but it does not set presence as a requirement for an investigation.”
  7. Para. 46: “There is no unanimity amongst international law scholars on whether presence is a requirement for investigation.”
  8. Para. 47: From a comparative survey, it “would appear that the predominant international position is that the presence of a suspect is required at a more advanced stage of criminal proceedings. … Scholars point out, however, that presence is generally not required for an investigation and there is no international law rule that imposes that requirement.”
  9. Para. 49: “South Africa may, through universal jurisdiction, assert prescriptive and, to some degree, adjudicative jurisdiction by investigating the allegations of torture as a precursor to taking a possible next step…”
  10. Para. 54: The Rome Statute crimes are considered “priority crimes” within South African law.
  11. Paras. 55-59: The SAPS bears a duty to investigate, and indeed to prioritize the investigation of, such crimes under the Constitution and the ICC Act, particularly in connection with requests for assistance from the Special Director mandated to direct the investigation of ICC crimes.
  12. Para. 61: “[U]niversal jurisdiction to investigate international crimes is not absolute.” It is subject to two limitations: (a) Subsidiarity: Ordinarily there must be “a substantial and true connection between the subject-matter and the source of the jurisdiction.” Investigating international crimes committed abroad is permissible “only if the country with jurisdiction is unwilling or unable to prosecute and only if the investigation is confined to the territory of the investigating state.” (b) Practicability: Before South Africa asserts universal jurisdiction, it must consider whether an investigation “is reasonable and practicable in the circumstances of each particular case.” This includes a consideration of “whether the alleged perpetrators are likely to be present in South Africa on their own or through an extradition request; the geographical proximity of South Africa to the place of the crime …; the prospects of gathering evidence …, and the nature and the extent of the resources required for an effective investigation.”
  13. Para. 64: The “ultimate enquiry” is whether the SAPS acted “reasonably” in declining to investigate crimes against humanity committed in another country.
  14. Paras. 70-72: The reasons advanced by the SAPS for nor moving forward, and its conclusions following its “armchair review” of the SALC/ZEF dossiers, contained a number of factual and legal misconceptions.
  15. Para. 74: on whether the investigation would be potentially harmful to South Africa-Zimbabwe relation on a political front, this concern is of no moment when international crimes are at issue. “Political inter-state tensions are, in most instances, virtually unavoidable as far as the application of universality, the Rome Statute, and, in the present instance, the ICC Act is concerned.”
  16. Para. 77: “[W]e are required to interpret all national laws in accordance with binding international law as prescribed by section 233 of the Constitution.”
  17. Para. 80: on South Africa’s duties to prosecute under international law, the Court noted that “Our country’s international and domestic law commitments must be honoured.  We cannot be seen to be tolerant of impunity for alleged torturers.  We must take up our rightful place in the community of nations with its concomitant obligations.  We dare not be a safe haven for those who commit crimes against humanity.”
  18. Para. 84: The applicant was ordered to pay the SALC’s and ZEF’s costs.

At some level, this outcome is unsurprising. The determination that a criminal investigation can commence prior to the point at which the jurisdictional requirements of a universal jurisdiction law are met is a prudent one that finds parallels in U.S. law, as discussed here. At any given moment, our own Department of Justice has opened anticipatory investigations on individuals accused of committing the whole range of transnational federal crimes (including atrocity crimes, crimes of terrorism, narco- and other forms of trafficking, etc.) who are not habitually present in the United States, but who might someday fall within the reach of our courts for a range of reasons, including past practice, family connections, investments, etc. Teeing up these dossiers for the moment at which the individual can be apprehended and brought to trial is simply sound prosecutorial policy.  This opinion confirms that this practice is also permitted by international law.